Saturday, February 18, 2012

CALLING A SPADE A DIRTY SHOVEL

CALLING A SPADE A DIRTY SHOVEL Joaquin G. Bernas, S.J.Letter of St. James to the President and the Chief Justice: “Among all the parts of the body, the tongue is a whole wicked world in itself: it infects the whole body; catching fire itself from hell, it sets fire to the whole wheel of creation. Wild animals and birds, reptiles and fish can all be tamed by man, and often are; but nobody can tame the tongue – it is a pest that will not keep still, full of deadly poison.” James, 1:5-6.Trabajo lang. I have written pieces critical of the current administration, as I did of the past administrations from the Marcos days. I will continue to express my opinion on legal matters as I see them. But I have also heard of intelligent people whom I normally respect saying that my views are not credible because one of my nephews is married to Luli Arroyo. Indeed he happily is. I will not attribute this ad hominen criticism of me to intellectual bankruptcy, but if my critics have any thing rational against my views, I will welcome them and I may yet be saved from my errant ways. But, please, identify yourself so I will know to whom to bow.About two years ago I opposed the power of President Arroyo to appoint a Chief Justice during the two-month prohibited election period. I mentioned no names. I learned later that for that I won the ire of the current Chief Justice. She eventually did appoint him. I still believe it was wrong for her to exercise that power. But I am not the Supreme Court. I also criticized the splitting of a congressional district in Camarines Sur in order to accommodate Arroyo allies. But Congress went ahead and split it and the Supreme Court blessed it. I still believe that the Supreme Court was wrong in upholding Congress. But I am not the Supreme Court.As lawyer, my measuring rod of public acts is always the Constitution first. I will always measure the acts of those in public office by the standard of constitutional law and not by blood or social relationship. I have even expressed constitutional views different from some members of the Catholic hierarchy and have been pilloried for it. Fortunately my Jesuit superiors and some in the hierarchy support me.I will sometimes disagree with Supreme Court decisions but will obey them, because a decision of the Supreme Court is law, even if I know that it is only supreme law until reversed by a later Supreme Court!I ardently supported Cory Aquino in her days, but her son should not be surprised if occasionally I oppose his views and actions. Trabajo lang.Incidentally I might also compare the style of the current President with the style of former President Arroyo. GMA generally spoke and acted through her subordinates. Thus bullets for her usually had to pass through the breastplate of subordinates first. But President Aquino often speaks and acts for himself. He is also loyal to his subordinates, even when they buy pirated tapes! He thus more readily exposes himself to bullets. Understandably Dr. Lacierda and Nurse Valte of the Palace Clinic sometimes go scampering to give him first aid.More Generally. Let me now offer some observations on the current impeachment proceeding.The impeachment body, which we usually refer to as a court, is both a judicial and political (read policy making) body. If it were meant to be a judicial body purely, the responsibility for impeachment would have been entrusted to a body under the judicial department.As a judicial body in the impeachment process the Senate applies the law. A virtue we expect of a judge is what is usually described as “cold neutrality.” In the current proceeding, I do not think anybody will accuse some members of the Senate of that virtue. But there is a plausible explanation for that.As asserted in a number of rulings of the presiding officer, the senators are given a wide leeway for asking questions. He recognizes that the senators are also jurors in search of truth. Thus, in all of this, so much depends on the sense of fairness of each individual senator. Incidentally, also of the President.Indeed, in countries where there is a jury system, there is such a thing as jury misconduct which can cause the reversal of a verdict. The cases on jury misconduct range from intentional disregard of the juror’s oath to unintentional actions by jurors who do not understand jury protocol.But what do I mean when I say that the impeachment body is also a policy making body? I mean that they also consider what is best for the country. Let me illustrate. Assume that the Senate finds that there is no sufficient ground to convict the accused. Fairness would demand that the accused be acquitted. Let us suppose, however, that the Senate finds sufficient ground for removal of the accused but in its judgment it would be worse for the country if the accused is removed from office. In the exercise of its policy making power it might decide to keep the accused in office. Will we know the reasons behind the decision of the senators? We might or we might not. As I see it, there is no obligation on the part of the senators to explain their vote. But most of them probably will explain their vote, as they did on the recent TRO issue, because they know that they themselves are on trial before the court of public opinion. Remember that some of them may still have electoral ambitions.20 February 2012